Probating a Will When the Original Document is Absent

The Surrogate’s Court will probate the Last Will and Testament of a decedent, or a copy in some circumstances if those original documents are missing. In New York, the attorney representative of an estate can petition the court to commence probate proceedings with a duplicate of a will. Petition to the Surrogate’s Court must be accompanied by clear and convincing proof that the dislocation of the Last Will and Testament is in error. If a decedent is found to have purposely destroyed the original documents of their own estate, the validity of the claim may be called into question by the court. A preponderance of evidence showing a copy of those documents should be demonstrated to verify that the interests of the decedent, and their estate are accurate.  


Rules of Intestacy Apply

When a court considers if a petition requesting probate of a copy of the Last Will and Testament of an estate, intestate succession laws apply. Rules of intestacy determine whether the parties claiming rights to distribution of a decedent’s assets are those designated as the rightful heirs and beneficiaries of an estate by law. New York rules of intestacy define the rights of surviving spouses, children, and other relatives to an estate’s assets in circumstances where no will exists.


If the copy of a will presented is valid, beneficiaries can either avoid probate, or at least reduce the time an estate is delayed in court. In cases where potential heirs or beneficiaries of an estate object to the probating of a copy of the Last Will and Testament, the proponent of a petition must provide substantial and legally adequate evidence that the decedent misplaced or lost the original will, with no intent to revoke rights of distribution.


Probating a Copy of the Will

If all heirs and beneficiaries named within the Last Will and Testament of an estate agree that a copy of those documents is valid, the next step to petition the court. Once accepted as the valid basis for representation of the designated beneficiaries of an estate, the court can proceed to admit the case for probate. Probate allows the court to finalize asset distribution according to a decedent’s wishes specified in the original will should there be no creditor attachment or other outstanding debt.


An Estate Law Attorney Can Help

The burden of proof is not always a simple matter for beneficiaries of an estate to evidence without an attorney. An estate law attorney experienced in matters of probate will assist the fiduciary representative of an estate, and its heirs and beneficiaries to determine if a copy of a will meets the criteria of the court and complete the probate process without additional delays and expense.


New York Estate Law Firm

Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about an estate or trust law related matter.     

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